Bradenton Beach homeowner wins variance hearing

Variance requests to city ordinances are not uncommon, but getting to the point at a quasi-judicial hearing before a special master is rare in Bradenton Beach.

At a Jan. 17 hearing at Bradenton Beach city hall chambers, 107 Gulf Drive, William Wisneski, owner of a duplex at 2516 Ave. B, won his appeal to extend a second-floor deck past the minimum setback requirements outlined in the city’s land development codes.

Special Master Harold Youmans presided over the proceedings. City building official Steve Gilbert represented Bradenton Beach in the dispute.

Gilbert said his responsibility is clear in the matter.

“City staff have a sworn obligation to defend city codes vigorously,” said Gilbert.

Gilbert said to get a variance application accepted, especially on a pre-existing structure, is not an easy process. To be allowed a variance essentially to bypass land development codes, requires the applicant to prove that his or her current situation represents a hardship. Equally important to a variance application is that any change made does not create a hardship.

Wisneski argued that he purchased the home with the nonconforming deck in March 2010.

“I’ve tried to conform to every city ordinance at the time I was aware of it,” said Wisneski.

Both sides agreed that the deck in question was in bad shape and in need of repairs. Wisneski wanted a 7-foot-wide deck to replace the 5-foot-wide deck.

City inspections determined the existing deck should have been a 4-foot-wide deck.

That left Wisneski not only fighting for the extra two feet he wanted, but also to maintain the existing deck size.

To be considered, Wisneski had to convince Youmans his request met the strict requirements for a variance application.

“This is not an unusual type of case, as far as Florida law is concerned, but it is unusual for this community,” said Youmans. “I have had thousands of these hearings and have witnessed changes in Florida laws over the last 30 years of doing this.”

“It’s not enough to get the majority of those eight,” said Youmans. “You must meet, according to ordinance and law, each and every one of the eight. Failing one, the application will fail.”

Youmans ruled Jan. 18 that Wisneski met the eight-point criteria, which includes both basic and complicated issues. At the heart of Youmans’ ruling was that the extension of the deck was needed to accommodate safety issues.

“To allow for additional, wider and more assured exits from the dwelling units during hazardous environmental or safety conditions, justifies the approval of the variance,” Youmans said in his ruling.

That’s up for interpretation, according to Gilbert, who disagreed with the decision. Part of Wisneski’s argument was wheelchair access to the deck, but that is not required in a home, Gilbert said.

“From the conservative standpoint, wheelchair access is voluntary anyway,” he said. “You are not forced to do it.”

Gilbert said, “the minimum relief would be a replacement of the same footprint.”

Gilbert said barrier island cities on the west coast of Florida are under the strictest regulatory codes in the state.

Gilbert said he didn’t blame Wisneski.

“He can’t be there all the time,” said Gilbert. “The deck was certainly in bad shape, and he didn’t know what he wanted to do until the scope of the damage was determined. It became a lot more than he expected and that’s when the contractor also determined the stairs had to be brought up to code.”

Gilbert said part of the blame probably lies with the contractor in that, “they don’t always read the final approval plans we give back to them.”

Gilbert said having a proper survey done before building or buying a new home can save people from facing these issues.

“When we got the drawings, it looked like the new deck would be back from the 10-foot setback line,” he said. “The original survey didn’t show that. Before you close on a house, have a survey done and make them show you all the setbacks.”

Gilbert said the survey would ensure you don’t end up in a battle with the city or your neighbors.

“Do I have a fence sitting on a neighbor’s property line? I need to know that,” he said. “It’s amazing how many people don’t get that survey.”

A special master’s decision can be appealed through the courts. Gilbert said, however, it would not be cost effective to the taxpayers to take that route.

“I disagree with the ruling,” said Gilbert. “There are times when it’s important to spend the money to protect regulations, but this isn’t one of them. Variances do not set precedents. This was unique to his situation and if there is a next one, it will also be unique.”